January 20, 2018 3:37PM

Diversity Visa Program Fixes that Should Satisfy Republicans and Democrats

Legalizing the DREAMers, building the wall, boosting border security, and reforming the diversity immigrant visa program are the components of a successful legislative deal to reopen the federal government. Reforming the diversity visa presents some unique challenges because Congress does not want to cut the number of green cards, but many Democrats – especially members of the Black and Hispanic Congressional Caucuses – worry that any substantial change to the program would diminish the number of immigrants from the nations that are favored under the current system. 

Fortunately, there is a policy solution that should satisfy both sides: convert the diversity visa into a merit‐​based system that still favors immigrants from the regions of the world that qualify for the diversity visa.

Before explaining this reform idea and how it would satisfy both political parties, some background on the diversity immigrant visa program is necessary. This immigration category allocates 50,000 green cards annually to foreign nationals, distributed by lottery. These green cards go only to applicants from low‐​admission countries that sent fewer than 50,000 immigrants to the United States in the last five yearsLottery winners must have at least a high school education or demonstrate two years of work experience within the past five years in an occupation that requires at least two years of training or experience. Applicants must also pass the required health, crime, and national security checks. No more than 7 percent of all winners can come from any one country in a given year.

The first portion of this reform idea would make many Republicans happy by canceling the diversity visa program and shifting those 50,000 green cards to a new merit‐​based green card category that would allocate the visas via a points system. The assignment of points under this immigration category is up to Congress, but copying the system outlined by Senators Tom Cotton (R‑AR) and David Perdue (R‑GA) in the RAISE Act would take a lot of ire out of their opposition. However, Congress should make some changes to the RAISE Act’s points scheme to prevent absurd outcomes. The diversity visa requirement that only 7 percent of the new green cards can go to applicants from any one country should also be removed to make it more meritorious. The green cards under this new category would then be allocated to applicants who get the most points, assuming they are eligible and meet some minimum point threshold. 

The second portion of this reform idea would make many Democrats happy by continuing to allocate these green cards to applicants from low‐​admission countries as defined under the law currently governing the diversity visa. By copying the diversity visa’s definition of low‐​admission countries, only foreign nationals from countries that sent fewer than 50,000 immigrants to the United States in the previous five years would be eligible for the new merit‐​based green card. This would guarantee that, at least initially, new immigrants under this merit‐​based points scheme would come from broadly similar countries as those who qualify for the current diversity immigrant visa program. 

Depending on the actual points system created by Congress, the specific immigrants from these countries would likely be more educated and fluent in English, but their countries of origin would be similar to those under the diversity visa program. 

Canceling the diversity immigrant visa program, transferring its green cards into a new merit‐​based points category, and only allowing applicants from low‐​admission countries to apply for those visas should satisfy most Republicans and Democrats who want a middle‐​ground solution that would reopen the federal government.

January 19, 2018 4:12PM

For the Purposes of the Fourth Amendment, Does it Matter Where Your Email Is Stored?

People use email for many things: to collaborate at work, catch up with old friends, share baby pictures, or, sometimes, to coordinate the operations of an international narcotics trafficking ring. The federal government believes certain Microsoft‐​hosted email accounts were used for this last purpose and is demanding Microsoft provide them access to the communications stored within.

The Stored Communications Act (SCA) governs federal law enforcement’s authority to search email and other electronic records. They must obtain a warrant, subject to constraints similar to those imposed by the Fourth Amendment, and then provide an opportunity for the target company (e.g. Microsoft here) to contest the warrant.

Microsoft chose to contest the warrant in this case on the ground that the emails in question are stored on servers in Ireland, arguing that federal law enforcement may not claim jurisdiction over the entire globe. The federal government argues that the happenstance of the server’s location is invisible to the user, who, while sitting in his apartment in Manhattan (or wherever), is oblivious to whether his email server is in Galway or Yonkers. Because this is an important and recurring question, the Supreme Court decided to step in and sort the matter out.

To assist the court in sorting through the difficult legal questions in the case, Cato has filed an amicus brief, joining the Competitive Enterprise Institute, TechFreedom, Reason Foundation, Individual Rights Foundation, and American Consumer Institute Center for Citizen Research. The brief focuses on elucidating the ways in which the Fourth Amendment and the SCA interact with modern technology. We argue that the law is increasingly, and correctly, recognizing that personal data belongs to the individual, much like the “houses, papers, and effects” mentioned in the text of the Fourth Amendment. Digital communications are different than physical things, of course, but the Terms of Service between Microsoft and its customers recognize the users’ property interests in the data. Therefore, while the warrant procedure under the SCA deviates slightly from the normal process, it nonetheless should be examined with the same rigor as a traditional warrant, and that means the traditional presumption against extraterritorial application should be respected in this case. Finally, we argue that concerns over gamesmanship — for example, American companies stashing their servers in Zanzibar to aid and abet criminality — can be more prudently addressed with other tools. The Court should affirm that the right of people to be secure in their papers and effects has not been abrogated by modern technology and that the long arm of the law shall not extend across all oceans without express authorization from the legislature.

January 19, 2018 3:51PM

More Data Fiddling — Is Another Warming “Pause” About to Start?

Yesterday Jim Hansen, now with Columbia University, and several of his colleagues released their summary of 2017 global temperatures. Their history, published by the NASA Goddard Institute for Space Studies, has constantly been evolving in ways that make the early years colder and the later years hot. I recently posted on how this can happen, and the differences between these modified datasets and those determined objectively (i.e. without human meddling).

For a couple years I have been pointing out (along with Judith Curry and others) that the latest fad — which puts a lot of warming in recent data — is to extend high‐​latitude land weather station data far out over the Arctic Ocean. Hansen’s crew takes stations north of 64⁰ latitude and extends them an astounding 1200 kilometers into the ocean.

This, plainly speaking, is a violation of one of the most fundamental principles of thermodynamics, which is that when matter is changing its state (from, say, solid to liquid), a stirred fluid will remain at “freezing” until it is all liquid, whereupon warming will commence.

This also applies in the Arctic, where the fluid is often stirred by strong winds. So if, say, Resolute, one of the northernmost land stations, is 50⁰F, and the Arctic is mixed water‐​ice (it always is), that 50 degrees will be extended out 1200 kilometers where the air‐​sea boundary temperature has to be around 30⁰F, the freezing point of seawater up there.

Hansen et al. did pay some attention to this, noting this extension, which they normally apply to their data, was responsible for making 2017 the second‐​warmest year in their record. If they “only” extended 250km (still dicey), it would drop their “global” temperatures by a tenth of a degree, which would send the year down a rank. The result of all of this is that the big “spike” at the end of their record is in no small part due to the 1200km extension that turns thermodynamics on its head.

There’s another interesting pronouncement in the NASA announcement; many people have noted that the sun is a bit cool in recent years, and that it continues to trend slightly downward. The changes in its radiance are probably good for a tenth of a degree © of surface temperature or so. Hansen et al. use this to provide covering fire should warming stall out yet again:

Therefore, because of the combination of the strong 2016 El Niño and the phase of the solar cycle, it is plausible, if not likely, that the next 10 years of global temperature change will leave an impression of a ‘global warming hiatus’.

The significance of this will all fall out in the next year or so. If temperatures head back down all the way to their pre‐​El Niño levels, that will ultimately bring back the post‐​1996 “pause.” We’re going to guess they are going to remain a couple of tenths of a degree above that, based on what happened after the big one in 1998, where they settled a small amount above the pre‐​El Niño of the earlier 1990s.

If the recent warming rate (adjusting for El Niño) continues, we’ll hear that it is doing so “despite” the sun. Given that one year (2018) can have little influence on a recent trendline, that copy may already have been written!

All of this begs the question: Hansen notes in his release that the warming rate since 1970 has been fairly constant, about 0.17⁰C per decade, and didn’t note that the average of the UN’s climate models say it should be about twice that now. More lukewarming.

January 19, 2018 3:11PM

Congressman Perry, Terrorists Did Not Cross the Border to Attack Las Vegas

Republican Congressman Scott Perry (PA) was a guest on Tucker Carlson Tonight last night in a segment about the continuing investigation into the Las Vegas shooting earlier this year. Congressman Perry said:

I have been made aware of what I believe to be credible evidence, credible information regarding potential terrorist infiltration through the southern border regarding this incident.

When pressed by another guest, Congressman Perry offered zero evidence but did say that “I have received what I feel to be and believe to be credible evidence of a possible terrorist nexus.” With all due respect to Congressman Perry’s feelings, they are not evidence and a serious charge like his requires evidence. If he does have such evidence, he should release it immediately. 

In researching my 2016 policy analysis on terrorism and immigration, I discovered nine terrorists who planned or carried out terrorist attacks on U.S. soil after entering illegally.* Those nine terrorists killed zero people in terrorist attacks on U.S. soil from 1975 through 2017. Of those nine terrorists who entered illegally, only three did so along the border with Mexico: Shain Duka, Britan Duka, and Eljvir Duka crossed as children with their parents in 1984. They are ethnic Albanians from Macedonia. They were three conspirators in the incompetently planned Fort Dix plot that the FBI foiled in 2007, long after they became adults and more than two decades after they entered illegally. There is no evidence that the Fort Dix plot was more than 23 years in the making. The Dukas murdered nobody in a terrorist attack.

The border with Mexico is a terrible way for terrorists to attempt to enter the United States, which is why so few have tried. The arguments for additional border security are bad but at least they are grounded in some facts. It is a sign of the desperation of immigration restrictionists that so many have to resort to conspiracy theories about terrorists to justify spending taxpayer dollars on more border security. 

More convicted or actual terrorists who planned an attack on U.S. soil actually entered or attempted to do so through the Canadian border. The deadly foreign‐​born terrorists since 1975 have overwhelmingly used non‐​immigrant visas to enter. Conspiracy theories about a wide‐​open southern border that terrorists cross to commit attacks are common but they should not be peddled by a member of Congress. If Congressman Perry does have evidence that a terrorist or terrorists entered through the southern border and committed the Las Vegas attack, I implore him to release it as soon as possible to prove me wrong.



*In my original analysis, I reported that ten foreign‐​born terrorists initially entered illegally but I incorrectly counted 1993 World Trade Center bomber Ahmed Ajaj as an illegal immigrant when he actually initially entered on a student visa. 

January 19, 2018 3:06PM

Stop Crying “Trade War!”

Every week the news cycle seems to deliver a brand new bombshell, followed by panic and endless commentary decrying a nationalist shift in U.S. policy positions. Trade policy provides a prominent example. Though it is exciting to see broader interest in the trade debate, the tendency to declare every little thought or action taken by the administration or by U.S. trade partners as a sign of a trade war is getting a little out of hand. Like the boy who cried "wolf," the media's incessant "trade war" refrains are losing credibility. Yes, there are trade disputes. There is trade conflict. And, perhaps, there are even trade skirmishes. But when every little administrative action or tweet is treated as part and parcel to "war," it gets difficult to take the reporting seriously.

For instance, recent reports that the Canadian government thought the Trump administration was planning to withdraw from the North American Free Trade Agreement (NAFTA) caused immediate shock, riling North American markets, despite the fact that the reports were mere speculation. Moreover, the rumor was based on something President Trump has been saying all along:  If a deal that favors the United States can’t be reached, he would withdraw from NAFTA.  (That’s a position not too different from those mouthed by Barack Obama and Hillary Clinton on the campaign trail in 2008).  Yes, it’s true that the 6th round of NAFTA talks is scheduled to begin January 21st, and many are nervous about its outcome. However, it is also true that every round has been touted as the “tipping point” in the negotiations. But just this week, President Trump suggested that he was open to continuing negotiations until after the elections in Mexico this summer. Those don’t sound like the words of someone preparing to kill NAFTA anytime soon.

In addition, there have been a number of needless alarm bells rung regarding a recent action by Canada at the World Trade Organization (WTO). On January 10, Canada requested consultations with the United States regarding certain aspects of U.S. trade remedy laws.  U.S. Trade Representative Robert Lighthizer called the action, “a broad and ill-advised attack on the U.S. trade remedies system,” and others suggested that the action was an unnecessary provocation by Canada that could threaten to derail the NAFTA talks.

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January 19, 2018 1:34PM

The FISA Political Follies Continue

Last night, POLITICO ran a FISA-related story with the lede,"Republicans authorize sharing of classified report on FBI, DOJ officials' conduct." These are the two opening paragraphs:

Republicans on the House Intelligence Committee have authorized their colleagues to access a highly classified report that they say details their concerns with the conduct of top FBI and Justice Department officials, as well as the agencies’ handling of a controversial surveillance program.

“We have concerns — FISA concerns — that all members of the body should know,” said Rep. Mike Conaway (R-Texas), a member of the committee, referring to the Foreign Intelligence Surveillance Act. Some of President Donald Trump’s allies in the House have argued that the program was inappropriately used to surveil a foreign policy aide to the Trump campaign.

Since then, several other House GOP members have weighed in on Twitter about the memo in question: Rep. Matt Gaetz (R-FL), Rep. Steve King (R-IA), Rep. Lee Zeldin (R-NY), and House Freedom Caucus chair Rep. Mark Meadows (R-NC).

Of the seven members I've seen raise this issue either in the POLITICO story or on Twitter, only one--Meadows--voted against the FISA surveillance expansion bill (S. 139) when it was before the House last week. That fact certainly raises some interesting questions the other six who did vote for S. 139 should answer:

  • When did the Representative learn of the HPSCI majority staff report in question—before or after the vote on S. 139
  • If the Representative learned of the memo before the vote on S. 139, why did he not publicly push for its release to all House members prior to the vote on S. 139? 
  • If the Representative learned of the memo before the vote on S. 139, why did the Representative vote in favor of a FISA bill that Fourth Amendment experts across the political spectrum argue would make such abuses more likely?
  • Since Meadows voted against S. 139, does he believe the House leadership should allow a new FISA reform bill to be brought to the floor to address the alleged abuses detailed in the memo?
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January 19, 2018 1:26PM

Freedom, Not Protectionism, Is America’s Greatest Achievement

Well, that was fast. Only a day after I said that we are likely to see increasing calls for protectionism citing alleged national security concerns, Scott N. Paul took to the pages of The New York Times to urge the imposition of new restrictions on steel imports based on this same justification. Long on attempted tugs at emotional and patriotic heartstrings, the piece is strikingly short on data suggesting U.S. national security has been imperiled by foreign imports. Indeed, to the extent Paul, who serves as president of the Alliance for American Manufacturing, even attempts to make this case it is through the following:

Even in this digital age, steel undergirds our military power, not to mention critical infrastructure. Tanks, aircraft carriers and the energy grid all rely on high-strength, lightweight steel. That steel has been made in America for generations.

The security of our own steel industry, though, has been in doubt for a long time. Domestic steel production peaked in 1973. The industry is now operating at less than three-fourths of its capacity. Thousands of steelworkers have been laid off since 2015, and those still working know their jobs are under constant threat. Only one American company makes essential electrical steel, and only one other supplies the type of steel needed to make Virginia-class submarines, the generation of attack submarines that are expected to be in production until 2043.

This is thin gruel, with little on offer besides the banal point that steel is used in the manufacture of many defense platforms. Paul's observation that steel production reached its apex 45 years ago, meanwhile, actually undermines his implication that a decline in steel production has been to the detriment of U.S. national security. After all, despite the steel industry operating below its production peak the United States has managed in the years since to conduct a massive defense buildup during the 1980s and engage in major conflicts in Kuwait, Iraq, and Afghanistan along with numerous other smaller-scale actions. And lest one think the steel industry has been in perpetual decline since 1973, a quick look at production statistics reveals current output to be rather unremarkable in the context of the last 30 years:

Raw steel production

Iron and steel products

Furthermore, as Clark Packard and Megan Reiss of the R Street Institute note, such production easily satisfies U.S. defense requirements with "only about 3 percent of steel shipped domestically in 2016 used for national defense and homeland security." And while Paul appears to imply that one American company for electrical steel and one for the steel used in the production of a particular type of submarine are insufficient, he makes no mention of why this is a problem or what a more appropriate number might be. Moreover, should the United States experience a shortfall or inability to produce the product domestically there is no reason why it couldn't fill this gap via imports. The United States, Packard and Reiss point out, does not lack for viable options should foreign sources be needed:

The United States also has a number of options to source steel from allies and non-hostile trading partners. In fact, of the top ten exporters of steel to the United States in 2016, only China could be considered a potential threat. Moreover, that threat becomes far less pressing when one considers how small a share China has of overall U.S. steel imports. China is only the source of 3 percent of American steel imports. Otherwise, 60 percent of imported steel mill products come from six other countries, none of which could plausibly be considered a threat to national security. According to the most recent available data from the International Trade Administration, between January and October 2017, the top exporter of steel to the United States is Canada, which accounted for 16 percent of imports during this period; Brazil, which accounted for 13 percent; South Korea, which accounted for 10 percent; Mexico, which accounted for 9 percent; Turkey, which accounted for 6 percent; and Japan, which accounted for 5 percent. 

Following his unconvincing case for steel tariffs on national security grounds, Paul then offers the following odd commentary:

Industry has been one of America’s greatest achievements. This is the nation that transformed itself into the arsenal of democracy, and with it won the last world war. Industry powered the country into a golden age of wealth and was a foundation of middle class prosperity.

Today America too often outsources the material to manufacture its prestigious projects, like the San Francisco-Oakland Bay Bridge, in a quest for savings. Half of the steel used in our energy pipelines is imported.

...Steel is our nation’s strength. Mr. Trump should remember that.

Both practically and philosophically this falls short. If one considers industry writ large to be one of this country's greatest achievements then the fact that far more American workers are found in industries which consume steel rather than produce it—roughly 147,000 in steel production versus 6.5 million in domestic manufacturers that use steel in the production process according to Tori K. Whiting of the Heritage Foundation—is an excellent reason to eschew import restrictions. And why is the use of outsourcing to reduce infrastructure construction costs, thus saving taxpayer dollars and freeing up resources to be used elsewhere, presented as a cause for worry? 

More importantly, while industry has indeed proven to be an important source of American wealth and prosperity, it should be remembered that the foundation of such economic might firmly rests on this country's commitment to individual liberty and freedom. It is this freedom, including to trade with those we wish, that is the country's foremost triumph and that from which all other achievements have been realized. No country has barricaded its way to greatness, nor surrendered its freedom in exchange for prosperity. This is what President Trump should truly remember.